2nd Circuit Burns Daubert in Social Security Proceedings

In accepting or rejecting the testimony of an expert witness, does the ALJ owe an explanation? The Second Circuit does not think so. If an objection is raised against an expert’s methodologies or his foundation, the ALJ is not even required to conduct an inquiry into the issue.

The Case of Brault Vs. SSA

George Brault appealed from the judgment of the United States District Court for the District of Vermont (Murtha, J.) affirming the decision of the Commissioner of Social Security (“the Commissioner”) denying Brault’s application for disability benefits. Based on the testimony of a Vocational Expert (VE) retained by the Government, the ALJ had concluded that Brault was “capable of making a successful adjustment to other work that exists in significant numbers in the national economy.”

An ALJ’s failure to cite specific evidence does not indicate that such evidence was not considered.

In response to hypotheticals from the ALJ roughly describing Brault’s specific limitations, the VE had identified eight occupations an individual with such limitations could perform. Brault’s counsel had asserted a Daubert-like objection to the VE’s actual testimony, contending it was unreliable. Brault argued, somewhat in passing, that the VE’s report improperly counted part-time positions. But his main objection to the VE’s testimony was that it did not reliably match the DOT codes to the OEQ (Occupational Employment Quarterly II) data which the VE relied upon. According to Brault’s submissions to the ALJ, the OEQ does not compile data by DOT code, but rather by Standard Occupational Classification System (“SOC”) code, a new system the Bureau of Labor Statistics has embraced to replace the DOT code regime. Brault submitted a memorandum arguing, “The underlying numbers were unscientific and failed to meet the Daubert standard for reliability.” He maintained that the VE “had no scientific basis to break down between the various DOT titles” and to match them to SOC codes. With the ALJ’s permission, Brault’s counsel submitted additional briefing fully setting forth his objections to the VE’s SOC-to-DOT mapping methodology. The ALJ never directly responded to those objections. Instead, about a month after the hearing, the ALJ issued a ruling which relied on the VE’s testimony, agreed that positions existed in the eight DOT positions the VE had identified at the numbers the VE had given, and denied Brault’s application for benefits. Brault appealed to the district court, which rejected Brault’s challenge to the reliability of the VE’s testimony, noting that it was appropriate for the VE to consult the OEQ in rendering his testimony.

Did the ALJ Owe an Explanation?

The ALJ, in his written ruling, did not mention Brault’s objection to the VE’s testimony. Brault argued that the ALJ needed to do more than that – he was owed an explanation. In Prince v. Bowen , the eighth circuit had held that…